Allahabad High Court
Paurhe @ Jamin Husain vs State Of U.P. on 17 November, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 16 Case :- CRIMINAL APPEAL No. - 66 of 2003 Appellant :- Paurhe @ Jamin Husain Respondent :- State of U.P. Counsel for Appellant :- Rakesh Kumar Tripathi Counsel for Respondent :- Govt.Advocate Hon'ble Brij Raj Singh,J.
(Order on Appeal)
1. Heard Sri H.B. Singh, learned counsel for the appellant Sri Manoj Singh, learned AGA and perused record.
2. This appeal has been filed by the appellant under Section 374 (2) CrPC against the judgment and order dated 20.12.2002 passed by the Additional Sessions Judge/Fast Track Court No.2, Lakhimpur Kheri in S.T. No.756 of 2000 Crime No.935 of 1999 under Section 323, 504, 506, 376, 511 IPC, Police Outpost Sharda Nagar, PS Kotwali Sadar, distt. Lakhimpur Kheri whereby the appellant has been convicted and sentenced under Section 323 IPC with fine of Rs.500/- and in default of payment thereof, the appellant was to further undergo imprisonment of six months simple imprisonment, under Section 354 IPC with a fine of Rs.2,500/- and in default of payment thereof, simple imprisonment of one year.
3. As per prosecution as, the complainant lodged FIR mentioning therein that goats of the accused appellant were grazing grass in the sugarcane field of the complainant at 10.00 O' Clock in the morning. Seeing this, the complainant went to oust and extrude those goats from the field. At the same time, the accused appellant came there and with intent to outrage her modesty, he started pulling her towards jungle bushes by catching hold of her hand. The complainant made alarm and objected. She was caught and was beaten by fists and kicks by the appellant. The appellant intimidated her that the incident should not be told to anyone in the village. On the alarm raised by the complainant, the witnesses namely Jagdev, Vinod and others reached to the place of incident and saved her.
4. The FIR was lodged under Section 323, 504, 506, 354 IPC on 11.6.1999, much belated i.e., two moths from the date of incident which took place on 10.4.1999.
5. The case was investigated by the Investigating officer and the chargesheet was filed under Section 323, 504, 506, 354, 376, 511 IPC. Charges were framed.
6. The accused appellant was confronted under Section 313 CrPC. He deposed before the Court that he was falsely implicated and did not commit offence as mentioned in the FIR. The appellant denied charges and pleaded not guilty.
7. The prosecution had examined three witnesses namely, PW-1, PW-2 and PW-3. After adducing evidence on record, the trial Court convicted and sentenced under Section 323 IPC with fine of Rs.500/- and in default of payment thereof, the appellant was to further undergo imprisonment of six months simple imprisonment, under Section 354 IPC with a fine of Rs.2,500/- and in default of payment thereof, simple imprisonment of one year.
8. Learned counsel for the appellant has submitted that the appellant was falsely implicated in the case due to enmity and the statement of the victim PW-1 and PW2 cannot be believed because no injury was received by the PW-1 injured who is complainant. He has submitted that the trial Court has acquitted the appellant under Section 376, 511, 504, 506 IPC and it has been found that no rape was committed by the appellant. Learned counsel for the appellant has further submitted that entire allegation and statement of the PW-1 injured goes to show that she had mala fide intention to implicate the appellant by levelling false charges of rape against him. He has further submitted that once such a heinous and serious crime was alleged to be committed by the appellant and it was found that the same was not true, then there is all possibility that the injured PW-1 has implicated the appellant falsely.
9. However, after arguing at some length, learned counsel for the appellant has submitted that he does not want to press the appeal on merit. Learned counsel for the appellant further submitted that the incident took place way back in the year 1999 and more than 23 years have passed. Now, after lapse of a period of 23 years of incident, it would not be appropriate to sent the appellant to Jail. He had requested that the sentence awarded to the appellant may be modified to the extent of the period of imprisonment already undergone on the ground that substantial period has been spent by the appellant in Jail and in pursuance of the non-bailable warrant dated 12.10.2022, the appellant was again sent to Jail on 2.11.2022 and he is Jail since then. He has requested that the conviction may be modified and the appellant may be set free on the ground of the period of sentence already undergone.
10. Learned counsel for the appellant has relied upon the judgment of Supreme Court in the case of B.G. Goswami. Vs. Delhi Administration, 1973 AIR 1457 while arguing the case on the question of quantum of sentence. In the said case, it has been observed as under:-
"Now the question of sentence is always a difficult question, requiring as it does, proper adjustment and balancing of various considerations, which weigh with a judicial mind in determining its appropriate quantum in a given case. The main purpose of the sentence broadly stated is that the accused must realise that he has committed an act, which is not only harmful to the society of which he forms an integral part but is also harmful to his own future, both as an individual and as a member of the society. Punishment is designed to protect society by deterring potential offenders as also by preventing the guilty party from repeating the offence; it is also designed to reform the offender and reclaim him as a law abiding citizen for the good of the society as a whole.
Reformatory, deterrent and punitive aspects of punishment thus play their due part in judicial thinking while determining this question. In modern civilized societies, however, reformatory aspect is being given somewhat greater importance. Too lenient as well as too harsh sentences both lose their efficaciousness. One does not deter and the other may frustrate thereby making the offender a hardened criminal. In the present case, after weighing the considerations already noticed by us and the fact that to send the appellant back to jail now after 7 years of the annoy and harassment of these proceedings when he is also going to lose his job and to earn a living for himself and for his family members and for those dependent on him, we feel that it would meet the ends of justice if we reduce the sentence of imprisonment to that already undergone but increase the sentence of fine from Rs- 200/- to Rs. 400/-. Period of imprisonment in case of default will remain the same."
11. In the case of Bankat and another Vs. State of Maharashtra, reported in (2005) 1 SCC, 343; accused were convicted under Section 326 I.P.C. and sentenced for one year imprisonment with fine. Hon'ble Apex Court reduced the sentence to the period already undergone on the ground that the parties have settled the dispute outside the Court and 10 years have elapsed from the date of incident.
12. In the case of Sattan Sahani Vs. State of Bihar and others, reported in (2002) 7 SCC, 604; accused were sentenced to three years' rigorous imprisonment under Section 326 I.P.C. In appeal, Hon'ble Supreme Court reduced the sentence to the period already undergone on the ground that the incident took place two decades back and parties have also compromised.
13. In the case of Uthem Rqajanna Vs. State of A.P., reported in 2005 (11) SCC, 531, accused was convicted and sentenced for six months under Section 304-A I.P.C. along with fine and for three months under Section 338 I.P.C. In appeal Hon'ble Supreme Court has reduced the sentence to the period already undergone.
14. In the case of Neelam Bahal and another Vs. State of Uttarakhand, reported in (2010) 2 SCC, 229; accused was convicted under Section 307 I.P.C. and was sentenced to undergo seven years' rigorous imprisonment. Hon'ble Supreme Court has convicted accused under Section 326 I.P.C. and reduced the sentence to period already undergone, i.e. almost one year, on the ground that the incident happened in the year 1987 when the accused was of young age of 25 years.
15. Sri Manoj Singh learned AGA has opposed the case. He has submitted that the appellant was convicted under Section 323, 354 IPC. After recording statement of PW-1 injured. and PW-2 and the same was considered by the Court below and thereafter, conviction order has been passed. He has further submitted that there is no illegality or infirmity in the judgment and order of conviction and the appeal is liable to be dismissed.
16. I have gone through the record and heard Sri Manoj Singh learned AGA and also the submissions made by the learned counsel for the appellant.
17. Looking into the facts and circumstances of the case, it is evident on record that the appellant has been acquitted from the charges of offence punishable under Section 504, 506, 376, 511 and it is found that the prosecution could not prove the case beyond reasonable doubt in the aforesaid sections. Only on the statement of PW-1 and PW-2, the Court below has relied and judgment and order of conviction has been passed.
18. After considering the rival submissions made by learned counsel for the appellant, considering the facts and circumstance of the case, considering that the alleged incident had taken place in the year 1999 about 23 years ago and now, appellant is more than 62 years of age and at this stage a substantive period had already been undergone by the appellant; and that he might have realized the mistake committed by him and might be remorseful of his conduct to the society to which he belongs and now he wants to transform himself. He was already in Jail for 15 days during trial. The accused is languishing in jail since 2.11.2022 on account of order of non-bailable warrant against him passed on 12.10.2022 by this Court. Thus, total one month has been undergone by him in Jail. He suffered the mental agony of criminal trial and conviction for about 23 years during trial and the ends of justice would be served if the accused is sentenced with the period of imprisonment already undergone in prison and it would be proper to reduce the sentence to the period of imprisonment already undergone by him.
19. The appeal stands partly allowed.
20. The accused-appellant, Paurhe @ Jamin Husain shall be released forthwith from jail, if he is not wanted in any other case.
21. Office is directed to transmit a copy of this order to the Court concerned for compliance.
22. Office is also directed to send back the record of the trial court immediately.
(I.A. No.1 of 2022: Bail Application under Section 389 CrPC) Bail application stands disposed of in terms of the order passed on memo of appeal.
Order Date :- 17.11.2022 Rajneesh JR-PS)